To answer this question, one need only look to the increased and more stringent national standards and state, county, local and regional model building codes which have been promulgated, as well as the availability of new and more sophisticated firestop products. "Firestopping," or the use of building materials in items such as pipes, ducts, conduits or cables that prevent the spread of flames, heat or hot gases through penetration of fire-rated walls, ceilings, or floors, has gained greater attention, particularly through the efforts of the FCIA, or the Firestop Contractors International Association. This article analyzes liability issues which arise from firestopping design specification, manufacture, and installation and concludes that firestopping is not an option, it is a necessity.

Background

Fires are estimated to cost the United States more than $128 billion a year. As the instances of high profile fires occur involving deaths and significant personal injuries, as well as the increase in rates of property loss damages and fire insurance premiums, insurance companies and owners have increasingly sought to pass the risk of loss to the construction and related industry parties.

Because firestop products, which through "F" and "T" ratings measure the time and speed of the fire through a construction component, are classified as regulated construction products, they must be tested by an accredited third-party testing agency. The E814-94b testing method, set forth by the American Society for Testing and Materials (ASTM), is meant to assist others in determining the suitability of through-penetration firestops where fire resistance is required. Indeed, the three major building codes require firestopping systems to comply with the ASTM 814 standards. Section 7270 of the National Institute of Building Sciences (NIBS) also provides step-by-step guidelines for the installation of firestop systems, including requiring the contractor to apply the firestop system in strict accordance with the manufacturer’s instructions for providing the requisite temperature and flame rated seals. Prior to concealing the system, the contractor should also notify the architect to inspect the system. As addressed below, failure to comply with said standards, can result in significant liability.

Model Building Codes

Federal, state and local government units have adopted various rules which specify minimum requirements as applied to building construction. Some states adopt a uniform statewide building code, while others delegate code adoption to counties and municipalities within the state. These various codes, each with different firestop standards, have created considerable confusion for building professionals and promise to be a source of future litigation.

In the absence of a uniform set of firestop standards, building professionals must design firestops according to multiple codes and will likely be held to compliance with the most stringent of the same. As a result, many building professionals and local code officials remain confused about which standards to follow when designing and inspecting firestop systems. In addition, in certain states, failure to comply with a statute, rule, ordinance or regulation (including building code requirements), allows a presumption of negligence that the defendant did not use due care. Such confusion can create serious liability issues.

Liability Starting Points

Any of the contracting entities involved in a given construction project or building fire, no matter how tenuous the link, may be held liable for a firestop system, or lack thereof. Owners, architects, design engineers, consultants, contractors and suppliers can all be held responsible for damages arising from the installation, design, or lack of a firestop system. Among questions the courts will ask are: (i) did the building professional’s contract or code require the installation of a particular firestop system and was this code followed; (ii) if the code was not followed, was the violation of the code the proximate cause of the fire; and (iii) who was responsible for, as opposed to who actually installed, the system?

The actual starting point of review is, therefore, the contractual arrangements on the project. The American Institute of Architects General Conditions of the Contract for Construction (the AIA Document A201 for the Owner General Contract, for example), which are the source documents for many projects, include numerous provisions which govern firestop liability. For example, on all projects, the contractor is required to field verify and inspect the Project to conform with the Contract Documents and to notify the Architect of any omissions (i.e., failure to detail a firestop system) (Clause 3.2.1) and to warrant that all work will be "free from defects not inherent in the quality required or permitted" (Clause 3.5.1). In addition, the Architect is required to make on site inspections to generally determine that the "Work is being performed in a manner indicating that the Work, when completed, will be in accordance with the Contract Documents" (Clause 4.2.2). These provisions all include significant responsibilities to ensure that the designed and installed system complies with all governing rules, regulations, codes and standards.

Insulation Outlook‘s May 2000 issue included this author’s prior article summarizing cases to that date involving firestopping cases. More recently, in a December 2000 decision, the California Supreme Court found that defendant developers and sub-contractors were not liable under a negligence theory for construction defects which did not cause personal injury or property damage. The court came to the conclusion that negligence claims which are based solely on damage to prospective economic advantage (i.e., the future value of the structure) can not be sustained even though the alleged construction defects violated the applicable building codes. However, the court explicitly noted that its decision did not preclude liability in tort for damage to property or for personal injury, should the alleged defects cause such problems. Further, the plaintiffs were not prevented from offering evidence of the defendants’ breach of contract or warranty even if the same evidence were excluded for purposes of the plaintiffs’ tort claims.

Despite the considerable confusion arising out of limited published firestop cases to date, certain legal principles are established and the importance of expert testimony in establishing firestop liability is paramount. For example, a Louisiana appellate case held that the question of liability surrounding the lack of firestops depended on the electrical engineer and the chief electrical inspector’s analyses and evidentiary proofs. The experts concluded that the fire was so rapid that firestops would not have saved the plaintiff’s property and, therefore, no liability existed.

Further, in another decision, the Court of Appeals of Texas overturned a jury’s verdict in favor of the homeowners’ cause of action against the general contractor and electrical sub-contractor for breach of warranty in connection with a fire that destroyed the appellees’ home. The appellate court found that although the homeowners’ experts’ testimony was relevant and reliable under Daubert, a recent federal court decision requiring a pre-trial qualification of proffered expert testimony, it was, nevertheless, insufficient to support the jury’s verdict.

How To Avoid Firestop Liability

In the firestopping context, liability can arise out of contractual relationships such as for breach of contract, or non-compliance with the project documents or specifications, breach of warranty, failure to warn, or negligence theories. Multiple parties can also be found to have contributed to the losses or damages. There are several avenues, both prescriptive and remedial, all construction parties can use to limit or avoid such liability.

Preventive Measures

Section 703 of the BOCA-NBC calls for construction documents for all buildings. These documents "shall designate the type of construction and the resistance rating of all structural elements as required" by the code. Thus, contractors must submit documentation or supporting data substantiating all required firestop ratings. Second, contractors must seek, through requests for information or otherwise, that architects specify firestop systems in conformance with the appropriate codes, and ASTM standards for the use for which the products were manufactured. Further, in projects that involve renovation and/or additions or modifications to existing construction, the parties should be provided a survey or as-built drawings detailing the firestop systems currently in place to ensure that the project, when completed (including any construction in-place), conforms to the existing codes.

Design engineers should also include evaluation reports of any contemplated firestop product. If the installer’s contract did not mandate installation of a particular firestop system, an architect can still later be found responsible if, in its inspections of the site, it did not identify that the particular firestop system failed to comply with all applicable codes. The architect should, therefore, provide detailed specifications and include drawings and specification review requirements. Finally, the architect should also require that the manufacturer’s printed installation instructions for all prefabricated devices, as well as product data sheets, and any needed engineering judgments be retained on the site and a hard copy of the same be provided to the architect.

Firestop manufacturers, in turn, must be on notice that any potential plaintiff may assert claims of strict product liability and may allege that the manufacturer supplied defective firestop products. In addition, all construction parties, and particularly the manufacturer’s representatives, when called upon to provide engineering judgments, must precisely follow the basic requirements promulgated by the International Firestop Counsel (IFC), which mandate that the same only be provided in writing and signed by the appropriate designated manufacturer’s representatives for tested systems.

Beyond familiarizing oneself with all applicable codes and standards, the building professional should follow developments in code regulations and industry standards and must keep abreast of legal developments in firestopping and general construction negligence cases. The building professional must also maintain insurance and investigate available products, for coverage of the installation and design of such systems. He must also obtain, from the company’s risk manager or insurance broker, periodic updates on all relevant cases wherein courts interpret the contractual indemnification and "hold harmless" provisions which may seek to limit construction liability, and can include the right to recover attorneys’ fees, and any potential limits or gaps in the contracting entity’s coverage.

Manufacturers and distributors should include "suitability for use" statements and prohibit sales of products for unauthorized applications. If asked to give an engineering or field judgement for an unanticipated construction application, manufacturer’s representatives must refuse to provide on-site oral "judgments" and must consult with the company’s qualified technical personnel to obtain a written engineering opinion based on proper test results.

Finally, owners should demand that only licensed firestop contractors install the firestop systems and that said contractor include tags or stickers, which are permanently affixed to the work, containing the manufacturer’s name, the testing agencies’ assigned listed systems design number, the installation contractor’s name and address, and the trade qualification certificate number of the installer. When renovation or any subsequent work is completed at the site, or where an owner purchases a pre-code, non-firestopped or sprinkled building, the owner must take extreme care to investigate and then install appropriate firestop systems.

Defenses to Liability

Certain defenses and legal devices exist to apportion potential liability amongst the participants in the construction project who may have contributed to the negligence. One well-established rule is that building professionals are not generally liable for the firestop products themselves. This is because contractors and designers are not considered sellers, and, therefore, are not strictly liable for any component parts they may supply in compliance with the performance of a contract.

Next, a building professional who receives detailed plans and specifications from the owner, generally has a right to rely upon the professional judgment and experience of those (architects and engineers) employed by the owner, who developed the same, unless a review of the documents shows glaring defects which a contractor of average skill and of ordinary prudence would know would likely cause injury. In addition, building professionals may argue that they are not liable because they followed the industry standard or local custom in completing the project and mandated that only specialty firestop contractors certified to comply with FM 4991 install the system. However, building professionals should be aware that it is no defense to claim to have followed a negligent industry standard or an inappropriate local custom.

The building professional can also diminish his or her liability by seeking contribution from other defendants for any damages that the plaintiff may be awarded. In addition to contribution claims, in some jurisdictions, defendants may also seek to diminish their liability for damages pursuant to the amount of fault, if any, attributable to the plaintiff.

A final defense to liability is the government contracts defense, in which a building professional enters into a contract with a public entity and constructs and/or designs according to the entity’s specifications. In one such case, the court held that an engineering firm that was sued for the negligent design of a highway bridge was not liable because the engineer followed the government’s guidelines.

Conclusion

The present increase in construction, in general, and the burgeoning construction litigation industry, seem to forecast a trend of increased construction and, specifically, firestop litigation. Accordingly, all entities engaged in the manufacture, sale, specification, design and installation of firestop products and/or systems, as well as those who purchase and insure buildings, must recognize they face potential liability under products liability, negligence or breach of contract theories, among other claims. Building professionals should remember to consult FM 4991 and any local or model building codes applicable to the project, to investigate, and to educate code officials in the necessity to inspect and assess code requirements, as well as industry standards.

If a project does not specifically call for firestop installation, the building professional should raise the issue with the architect and owner, and, if possible, memorialize such communications in writing. Overall, it is important to consider firestop issues before undertaking any construction project, or purchasing any structure built before sprinklers or firestops were required by applicable codes, and if problems arise, to understand that methods do exist to limit liability, in specific factual situations. In consideration of these factors, as well as upon study of the current state of the law in these areas, the answer to the originally stated question is: "Firestopping Is Not Optional".